Introduction
In the case of Policy Bazar Insurance Web Aggregator & Anr. v. Coverfox Insurance Broking Pvt. Ltd. & Ors., the Delhi High Court on September 6, 2023, has dismissed Policybazaar’s plea for injunctive relief, seeking to restrain other entities from employing keywords identical to its registered trademarks within Google’s AdWords Program. During the hearing of Policybazaar’s action against Coverfox Insurance Broking Pvt Ltd and Acko General Insurance Ltd, alleging trademark infringement, Justice Navin Chawla concluded that there was prima facie insufficient clear evidence to support the claim of trademark infringement. In the process, he reiterated various fundamental elements essential for establishing a prima facie case of trademark infringement. The ensuing discourse offers a perspective on the Court’s legal analysis that informed its decision.
Factual Matrix
PolicyBazaar initiated two parallel legal actions, one against Coverfox, an insurance company, and another against Acko General Insurance. These lawsuits were predicated on the assertion that both entities had employed their registered trademark, “Policy Bazaar,” as an AdWord. In essence, when users conducted a Google search for ‘Policy Bazaar,’ these companies would feature in the ‘sponsored links’ section of the search results.
The plaintiffs in this case held trademarks for “Policy Bazaar,” “PolicyBazaar,” and “Policy Bazar.” They brought forth a legal complaint against the defendants, contending that the defendants were utilizing identical or deceptively similar trademarks as keywords within the Google AdWords Program. PolicyBazaar contended that such utilization of its trademark by Coverfox and Acko within the framework of the Google AdWords Program amounted to ‘use’ as delineated in the provisions of the Trade Marks Act, 1999. Consequently, they alleged that it constituted a trademark infringement.
The primary contention put forth by the plaintiffs revolved around the argument that this utilization constituted trademark infringement and passing off, thereby forming the crux of their legal case.
What the Court Held
The central focus of the Court’s decision rested on the question of whether using these trademarks as keywords could be classified as a “use of a trademark” under Section 29(1) of the pertinent trademark act. The Court held that keywords in online advertising do not primarily function to identify the source of goods or services. As a result, Section 29(1) of the act, pertaining to trademark infringement, was deemed inapplicable in this context.
Furthermore, Justice Navin Chawla dismissed PolicyBazaar’s plea by referencing a recent Delhi High Court judgment in the case brought by DRS Pvt Ltd and Agarwal Packers and Movers against Google. In that case, the Court determined that the utilization of trademarks as keywords within the Ads program does not inherently amount to trademark infringement unless there exists a genuine likelihood of confusion between the sponsored links and the trademarked company name.
“It may be true that the use of such keywords may have increased the advertising costs for the plaintiffs and could potentially result in more visits to the defendant no. 1’s website(s) in the two Suits. However, as per the Division Bench’s ruling, this, in and of itself, is insufficient to establish that the defendants have infringed upon the registered trademarks of the plaintiffs or engaged in passing off. In my prima facie opinion, the mere appearance of the defendant no. 1’s website(s) as advertisements or sponsored links is insufficient to conclude that internet users will be confused thereby,” noted Justice Chawla in his judgment.
Dissecting other Nuances of the Judgement
- Acknowledging User Perspective
The Court also considered the viewpoint of an internet user, underscoring that individuals utilizing search engines typically understand how these engines operate and the type of results they generate. Within this framework, the Court logically concluded that the solitary use of a trademark as a keyword does not inherently give rise to confusion among users who are familiar with the functioning of search engines. Put differently, the mere utilization of a trademark as a keyword does not automatically induce consumer confusion.
The High Court observed, “The Suits are based on the allegations of mere use of plaintiffs’ registered trade marks as keywords by the defendant no.1 in the two Suits in the Google AdWords Program run by the defendant nos. 2 and 3. It is not the case of the plaintiffs that the advertisements as they appear on the search engine under the sponsored link or under the advertisement/sponsored links are per se deceptive or may result in confusion in the mind of the internet user. In fact, these search results shown by the plaintiffs in their plaint clearly depict the website of the defendant no.1 in the two Suits as a sponsored link with a mark, and under the own name of the defendant no. 1. They do not also reflect, in their brief summary as it appears on the front page, any connection with the plaintiffs.”
- Assessing Damages
Although the plaintiffs contended that employing their trademarks as keywords resulted in escalated advertising expenses and the possibility of increased traffic to the defendant’s website, the Court did not deem these factors adequate to establish trademark infringement or passing off. Essentially, the Court determined that these outcomes, while potentially disadvantageous to the plaintiffs, did not constitute legal transgressions on the part of the defendants.
Analysis and Conclusion
Consequently, the High Court has dismissed the applications. This case elucidates the nuanced legal complexities concerning the utilization of trademarks as keywords in online advertising. It underscores the imperative to meticulously evaluate functionality and the user perspective in these instances. While trademark holders may indeed possess valid apprehensions regarding their brand’s online visibility, the mere employment of trademarks as keywords may not invariably amount to trademark infringement or passing off, as evidenced by the Court’s verdict.
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